A little more on Stop the Beach Renourishment

Posted Wed, June 23rd, 2010 5:40 pm by Elisabeth Oppenheimer

Elisabeth Oppenheimer is a recent graduate of Stanford Law School.

As Anna Christensen noted in her earlier post, the Court’s opinion in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (08-1151) ended up turning on a narrow question of Florida property law. But the Court took the case to explore the idea of judicial takings, and six Justices expressed their views on that subject. A four-Justice plurality "“ the Chief Justice and Justices Scalia, Thomas, and Alito — emphatically endorsed the idea that the Takings Clause applies to all three branches of government. As for the standard of review, the plurality concluded that the question was not whether the state court's decision was "unpredictable," as the petitioner had suggested, but whether a court had "declare[d] that what was once an established right of property" no longer existed.

However, there was no obvious fifth vote for either the notion of a judicial taking or the standard of review suggested by the plurality. Justices Breyer and Ginsburg refused to address the question of judicial takings at all. Justice Kennedy, joined by Justice Sotomayor, suggested that there should be some constraint on a court's ability to reallocate property rights. But they thought that constraint should come from the Due Process Clause, rather than the Takings Clause. Justice Kennedy questioned how a judicial taking would work — in particular, whether a court could constitutionally take property if just compensation were paid (as a legislature can), and, if so, who would pay that compensation. Given that complication, he proposed a simpler way to restrain over-active state courts: "The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is "arbitrary or irrational' under the Due Process Clause."

The decision may be a partial victory for property-rights advocates; there are four strong votes for a judicial takings theory, and no votes for providing state courts with unfettered discretion. But both the plurality and the concurrences leave significant questions about the broader concept of judicial takings unanswered or under-analyzed, and there is no consensus about how to go forward.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.